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This case was last updated from Los Angeles County Superior Courts on 07/13/2019 at 01:34:51 (UTC).

RICK SIEGEL VS DAVID A ALESSI ET AL

Case Summary

On 01/03/2018 RICK SIEGEL filed a Contract - Professional Negligence lawsuit against DAVID A ALESSI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9037

  • Filing Date:

    01/03/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiff and Petitioner

SIEGEL RICK

Defendants, Respondents and Cross Defendants

DOES 1 TO 10

ALESSI & BAYARD

ALESSI DAVID A.

KOENIG ROBERT A.

ALESSI & KOENIG A PROFESSIONAL CORP.

ALESSI & KOENIG

ALESSI & KOENIG APC

Defendant, Respondent and Cross Plaintiff

KOENIG ROBERT A.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ARDEN JAMES ELLIS ATTORNEY AT LAW

ARDEN JAMES ELLIS

Defendant Attorneys

HERRERA ALEJANDRO H.

KURTZ GARY ALAN

 

Court Documents

NOTICE OF RESCHEDULING DATE FOR DEFENDANT ROBERT A. KOENIG'S HEARING ON DEMURRER AND MOTION TO STRIKE THE COMPLAINT OF PLAINTIFF, RICK SIEGELTO NOVEMBER 14, 2018

7/30/2018: NOTICE OF RESCHEDULING DATE FOR DEFENDANT ROBERT A. KOENIG'S HEARING ON DEMURRER AND MOTION TO STRIKE THE COMPLAINT OF PLAINTIFF, RICK SIEGELTO NOVEMBER 14, 2018

CASE MANAGEMENT STATEMENT

7/30/2018: CASE MANAGEMENT STATEMENT

CIVIL DEPOSIT

8/3/2018: CIVIL DEPOSIT

CASE MANAGEMENT STATEMENT NO.3

8/3/2018: CASE MANAGEMENT STATEMENT NO.3

Minute Order

8/10/2018: Minute Order

POINTS AND AUTHORITIES OPPOSING ROBERT A. KOENIG'S MOTION TO STRIKE THE COMPLAINT, OR PORTIONS OF THE COMPLAINT

9/26/2018: POINTS AND AUTHORITIES OPPOSING ROBERT A. KOENIG'S MOTION TO STRIKE THE COMPLAINT, OR PORTIONS OF THE COMPLAINT

NOTICE OF: (1) CONTINUANCE OF CASE MANAGEMENT CONFERENCE, ETC

9/26/2018: NOTICE OF: (1) CONTINUANCE OF CASE MANAGEMENT CONFERENCE, ETC

POINTS AND AUTHORITIES OPPOSING ROBERT A. KOENIG'S DEMURRER TO THE COMPLAINT

9/26/2018: POINTS AND AUTHORITIES OPPOSING ROBERT A. KOENIG'S DEMURRER TO THE COMPLAINT

DEFENDANT ROBERT A. KOENIG'S REPLY BRIEF TO PLAINTIFF RICK SIEGEL'S OPPOSSITION TO DEFENDANT, ROBERT A. KOENIG'S DEMURRER

10/3/2018: DEFENDANT ROBERT A. KOENIG'S REPLY BRIEF TO PLAINTIFF RICK SIEGEL'S OPPOSSITION TO DEFENDANT, ROBERT A. KOENIG'S DEMURRER

Case Management Order

2/4/2019: Case Management Order

Demurrer - with Motion to Strike (CCP 430.10)

3/8/2019: Demurrer - with Motion to Strike (CCP 430.10)

Memorandum of Points & Authorities

5/20/2019: Memorandum of Points & Authorities

Memorandum of Points & Authorities

6/11/2019: Memorandum of Points & Authorities

Notice Re: Continuance of Hearing and Order

6/21/2019: Notice Re: Continuance of Hearing and Order

NOTICE OF ATTORNEY ROBERT A. KOENIG'S UNAVAILABLITY

4/2/2018: NOTICE OF ATTORNEY ROBERT A. KOENIG'S UNAVAILABLITY

ANDED PROOF OF SERVICE FOR DECLARATION OF DEMURRING PARTY, DEFENDANT, ROBERT A. KOENIG IN SUPPORT OF AUTOMATIC EXTENSION

4/16/2018: ANDED PROOF OF SERVICE FOR DECLARATION OF DEMURRING PARTY, DEFENDANT, ROBERT A. KOENIG IN SUPPORT OF AUTOMATIC EXTENSION

CASE MANAGEMENT STATEMENT

4/20/2018: CASE MANAGEMENT STATEMENT

Minute Order

4/23/2018: Minute Order

58 More Documents Available

 

Docket Entries

  • 07/09/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Case Management Conference - Held - Continued

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  • 07/09/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

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  • 07/09/2019
  • Minute Order ( (Case Management Conference; Hearing on Demurrer - with Motion...)); Filed by Clerk

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  • 07/09/2019
  • Order (RULING); Filed by Clerk

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  • 07/08/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Continued - Court's Motion

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  • 07/08/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

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  • 06/26/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Continued - Stipulation

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  • 06/24/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

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  • 06/24/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Continued - Court's Motion

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  • 06/24/2019
  • Request for Refund / Order; Filed by David A. Alessi (Defendant)

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113 More Docket Entries
  • 03/27/2018
  • PROOF OF SERVICE SUMMONS

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  • 03/27/2018
  • PROOF OF SERVICE SUMMONS

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  • 03/27/2018
  • Proof of Service (not Summons and Complaint); Filed by Rick Siegel (Plaintiff)

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  • 03/27/2018
  • Proof of Service (not Summons and Complaint); Filed by Rick Siegel (Plaintiff)

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  • 03/27/2018
  • Proof of Service (not Summons and Complaint); Filed by Rick Siegel (Plaintiff)

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  • 01/08/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/08/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/03/2018
  • COMPLAINT (1) BREACH OF FIDUCIARY DUTIES ;ETC

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  • 01/03/2018
  • SUMMONS

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  • 01/03/2018
  • Complaint; Filed by Rick Siegel (Plaintiff)

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Tentative Rulings

Case Number: BC689037    Hearing Date: July 13, 2020    Dept: 50

 

Superior Court of California

County of Los Angeles

Department 50

rick siegel,

Plaintiff,

vs.

david a. alessi, et al.,

Defendants.

Case No.:

BC 689037

Hearing Date:

July 13, 2020

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

JPMORGAN CHASE BANK, N.A.’S DEMURRER TO CROSS-COMPLAINT

Background

Plaintiff Rick Siegel (“Siegel”) filed this legal malpractice action against Defendant David A. Alessi (“Alessi”), Robert A. Koenig (“Koenig”), Alessi & Bayard (“A&B”), Alessi & Koenig (“A&K”), and Alessi & Koenig, A Professional Corporation (“A&K APC”) (collectively, “Defendants”) on January 3, 2018. The operative Second Amended Complaint (“SAC”) was filed on July 29, 2019 and asserts causes of action for breach of fiduciary duties, constructive fraud, intentional misrepresentation, and legal malpractice. Siegel alleges that Defendants’ committed legal malpractice during their representation of him in a series of lawsuits Siegel filed against JPMorgan Chase Bank (“Chase”). The underlying lawsuits against Chase related to a pending foreclosure of Siegel’s home in Los Angeles.  

On February 10, 2020, Alessi filed a Cross-Complaint against Koenig, Chase, and MTC Financial, Inc. dba Trustee Corps. (“MTC”). Alessi asserts causes of action for equitable indemnity and comparative indemnity.

Chase now demurs to both causes of action on the basis that both fail to state facts sufficient to constitute a cause of action. Alessi opposes.

Request for Judicial Notice

The Court grants Chase’s request for judicial notice as to Exhibits A, B, and C.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) 

In the Cross-Complaint, Alessi alleges that but for the “alleged wrongful conduct” of Chase and MTC, Alessi would not now be a defendant in this action. Alessi further alleges that had Chase “not engaged in a wrongful foreclosure” and “not wrongfully initiated and ultimately foreclosed” on Siegel’s home, Siegel would not have lost his home and would not have needed to initiate legal action against Alessi. (Cross-Compl., ¶¶ 18-19.) Alessi seeks “contribution, indemnity, equitable indemnity, implied indemnity, comparative fault and other equitable and legal remedies” against Chase and MTC “for their alleged wrongful conduct towards [Siegel] which gave rise to this legal action.” (Cross-Compl., ¶ 21.)

Chase contends that Alessi may not seek equitable indemnity against Chase because Siegel is not asserting in the SAC that Chase and Alessi are liable for the same injury.

In general, indemnity refers to the obligation resting on one party to make good a loss or damage another party has incurred.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157 [internal quotations omitted].) In California, “we now recognize there are [] two basic types of indemnity: express indemnity and equitable indemnity.” (Ibid.) As is relevant here, equitable indemnity “is premised on a joint legal obligation to another for damages.” (Id. at p. 1158.) “Although traditional equitable indemnity once operated to shift the entire loss upon the one bound to indemnify, the doctrine is now subject to allocation of fault principles and comparative equitable apportionment of loss.” (Ibid.) Nevertheless, “there can be no indemnity without liability.” (Id. at p. 1159.) “To state a claim for indemnification, a defendant must allege that the same harm for which he may be held liable is properly attributable—at least in part—to the alleged indemnitor. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1127, superseded by statute on other grounds.) “It is not sufficient, for purposes of indemnification, for a defendant simply to claim someone else caused all or part of the plaintiff’s damages.” (Ibid.) “Absent some claim of mutual liability for the same harm, []—under joint-and-several or vicarious liability principles, for example—an indemnification action will not lie.” (Id. at p. 1128.)

In the instant case, Chase argues that because Siegel’s claims in the SAC arise from conduct undertaken as part of Siegel’s legal representation, Alessi cannot establish that the harm for which Siegel is attempting to hold him liable is attributable at all to Chase. Although Alessi attempts to characterize Siegel’s claims in the SAC as claims for wrongful foreclosure, the Court finds no support for that characterization in the SAC.[1] Rather, Siegel alleges that Defendants’ “unethical conduct, abandonment of the plaintiff, substandard representation, malfeasance, and breaches of duties” caused Siegel to lose his home. (SAC, ¶ 48.) These harms are entirely different from the harms for which Alessi claims Chase is liable—namely, wrongfully initiating and engaging in the foreclosure of Siegel’s home. As discussed in Molko, Alessi may still claim in his defense against the SAC that someone else (i.e., Chase) caused Siegel’s damages (i.e., losing his home). (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at pp. 1127-1128.) But in order to state an affirmative claim for equitable indemnity against Chase, Alessi must allege that Chase is mutually liable for the breaches set forth in the SAC. The Court finds that Alessi has failed to do so in the Cross-Complaint.

Alessi argues that Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439 supports his position, but Platt only reinforces the rule as discussed above. In Platt, plaintiff investors sued their attorneys for malpractice for, among other things, “negligently advis[ing] them the investment was sound.” (Id. at p. 1442.) The attorneys filed a cross-complaint against the investors for equitable indemnity and also named an additional cross-defendant, Coldwell Banker, who was not a plaintiff in the main malpractice action. (Id. at pp. 1442-1443.) The Court of Appeal noted that Coldwell Banker’s liability rested “solely on [its] alleged agency with” one of the other plaintiffs/cross-defendants. (Id. at p. 1443.) When the attorneys’ cross-complaint was dismissed, the attorneys appealed from the dismissal of their cross-complaint against Coldwell Banker. (Ibid.) Coldwell Banker argued on appeal that the trial court properly dismissed the cross-complaint because “equivalent relief” was available to the attorney defendants “by virtue of their comparative negligence affirmative defense.” (Id. at p. 1445.) The Court of Appeal rejected this argument out of hand. (Id. at p. 1447 [“In light of these authorities, we reject Coldwell Banker’s invitation to affirm solely because liability will be adequately apportioned in the underlying malpractice action.”].) Coldwell Banker’s argument that public policy considerations precluded the equitable indemnity claim fared no better. (Id. at p. 1448.) The Court of Appeal ultimately reversed, holding that “a cross-complaint for equitable indemnity against an alleged joint tortfeasor states a cause of action unless, under the particular facts alleged, the cross-complaint would operate inequitably.” (Id. at p. 1450.) The operative phrase here is “joint tortfeasor”—as in, Coldwell Banker was alleged to be liable for the same harms as alleged against the attorneys. Specifically, the attorneys alleged in their cross-complaint that Coldwell Banker (through its agent) also “misrepresented the soundness of the investment” to the other investors. (Id. at p. 1443.) Thus, Platt was not a case where there was a question as to the existence of mutual liability, so the fact that Platt resulted in a viable equitable indemnity cross-complaint does not make it a case favorable to Alessi.

The parties also disagree as to whether public policy considerations militate in favor of allowing Alessi’s equitable indemnity claims to proceed. But as set forth in Platt, considerations of public policy are only reached if and when a cause of action has been stated. Here, because the Court finds that no cause of action has been stated, the Court need not and does not weigh the public policy arguments offered by the parties.

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, although Alessi requests leave to amend, the Court finds that Alessi has not met his burden of showing how he can amend the Cross-Complaint so that a viable cause of action for equitable indemnity or comparative indemnity against Chase can be stated.

Conclusion

Based on the foregoing, the Court sustains the demurrer by Chase to Alessi’s Cross-Complaint, without leave to amend.

The Court orders Chase to file and serve a proposed judgment of dismissal within 10 days of the date of this order.

Chase is ordered to give notice of this ruling.

DATED: July 13, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] Alessi asserts that the Cross-Complaint “seeks indemnity based on Siegel’s allegations about a wrongful foreclosure.” (Opp’n, p. 9:14-15.) But allegations about a wrongful foreclosure do not constitute a claim or cause of action for wrongful foreclosure. In any event, nothing in Siegel’s SAC suggests that Defendants, Siegel’s attorneys, wrongfully foreclosed on Siegel’s home. And as pointed out by Chase, Alessi points to no allegations in the SAC that support such a conclusion.

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